“The United Nations Convention Against Torture (UNCAT) is one of the first documents at the international level that deals with the prevention of torture. The UN in its General Assembly resolution 39/46 of 10 December 1984 adopted the Convention and currently 141 states are parties to it. India signed it in October 1997 but is yet to ratify it. The convention condemns torture, inhuman and degrading treatment of prisoners by public officials. As per this convention, torture takes place only when a public official is involved in infliction of higher degree of pain, both mentally and physically. Torture includes a variety of methods, including severe beating, electric shock, sexual abuse, rape, prolonged solitary confinement and deprivation of sleep, food or water. Moreover, torture is not limited to acts causing physical pain or injury. It also includes acts that cause mental suffering, such as through threats against family or loved ones.

The overall objective of the Convention against the torture is to prevent torture and to ensure that effective remedies are available to victims[ Art 2]…… States parties to the Convention are required to outlaw torture and are explicitly prohibited from using ‘ higher orders’ or ‘exceptional circumstances’ as excuses for acts of torture[ Art 2(2) and 2(3)]. The Torture Convention specifies that the alleged torturers may be tried in any State party or they may be extradited to face trial in the State party where the crimes were committed…. Every State is required to take effective legislative, administrative, judicial, or other measures to prevent acts of torture in its territory. Acts of torture must be offences under criminal law. … On the basis of above, The Prevention of Torture Bill, 2010 was introduced in the Lok Sabha on April 26, 2010 by Minister of Home Affairs. The Bill was passed by the Lok Sabha on My 6, 2010 and is pending in the Rajya Saba. The Bill seeks to provide punishment for torture inflicted by public servants… The perpetrators of torture include the police, gendarmerie (in countries where this institution exists), the military, paramilitary forces, state controlled contra-guerilla forces and the prison officers…”

From the quoted expression it is clear that a greater majority of independent countries have pledged to prevent torture that the state agencies inflict on jail inmates. India being one of the signatory to the UNCAT shows she too echoes the voice of the global community and is committed in its obligation of preventing physical and mental torture of prisoners. That The Prevention of Torture Bill, 2010 has been passed by Lok Sabha( the elected House of the Parliament) testifies India’s approval to the Un Convention.

Even if India would not have signed the UNCAT and Lok Sabha not clearing it, it is incumbent on the government to ensure the safety and dignity of the prisoners and respect their religious sentiments and cultural ethos. Article 5 of the Universal Declaration of Human Rights( UDHR) proclaims that’ No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment’. Following the spirit of Universal Declaration, India proclaimed its faith in fundamental freedoms in the Indian constitution which provides for life and dignity and honor as incorporated in the preamble and in the chapter on fundamental Rights. And Constitution has entrusted the work for protecting fundamental freedoms to Indian judiciary.

The moment state law enforcing apparatus makes a physical custody of a person judicial organ of the state gets activated. The court demands physical appearance of the person to ensure his safety and see whether imprisonment and detention is legal (Habeas Corpus). Till the accused is proven guilty – not by the police but by the court-- the accused is innocent. And has to be treated like that, in all respects. The court acts as a protective shield against any threat to life of the person detained or imprisoned. That is why courts in India do not accept forced confession.

Leave prisoners alone , even Prisoners of War (PoWs) have been granted rights and their safety has to be ensured by the country that imprisons them. This humanness is shown, and has to be shown, to those who, a minute before, were baying for your blood.

In this backdrop the reports of Kashmiri prisoners being manhandled and severely beaten in Tihar jail by jail authorities is shocking. These are political prisoners having some dissenting views on a long drawn-out conflict rooted in politics of the region. They cannot be projected as ‘criminals’ and their life put in danger. The Delhi High Court, in response to the bail plea moved by one of the victims, took a serious note of the incident and called it ‘very disturbing’ and’ completely unjustifiable’. The two judge bench remarked ‘ if this is the situation in Delhi, what about other places’. Appointing a fact finding committee to inquire into the incident, the bench said ‘ It is our duty to ensure their (inmates) life is safe and secure even though they are accused of serious offences’.

How harsh the charges, it is for the courts to decide and take a final call. The jail authorities are there to take care of them and provide the facilities in light of the jail manual, rather than subject them to vengeance themselves or through the hard core criminals in jail. The condemnable incident has evoked sharp resentment in Kashmir across political and ideological persuasions. The Delhi court’s taking cognizance of the matter shows the gravity of violation of prisoner’s rights. And we hope the guilty personnel will be taken task.

The question is when there is sufficient accommodation in local jails, why prisoners from Kashmir are shifted to outside jails. This only aggravates the miseries of the victims’ families. The issue is humanitarian and needs to be addressed as such. There is a Supreme Court ruling that directs state governments to keep prisoners in jails near their homes so that family members can have easy access to them. Why the government violates the ruling?